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IN THE HIGH COURT OF DELHI AT NEW DELHI
Poonam A. Bamba, J.
Vishwanath Pratap Singh - Appellant
Versus
Election Commission Of India - Respondent
W.P.(Crl)-9475 of 2022 and CM Appl. 28293 of 2022
Decided On : 10-06-2022
Election Petition - Rajya Sabha Candidature - Article 329, Representation of the People Act, 1950 - The court dismissed the petition seeking mandamus to file nomination for Rajya Sabha Election 2022, citing the bar to interference by courts in electoral matters under Article 329 of the Constitution of India and Section 80 of the Representation of the People Act, 1950.
Fact of the Case:
The petitioner sought a writ to file his nomination for Rajya Sabha Election 2022, claiming infringement of his fundamental rights. The respondent argued that the petition was not maintainable as it was barred by Article 329(b) of the Constitution of India and Section 80 of the Representation of the People Act, 1950.
Finding of the Court:
The court found that the petitioner's nomination form did not bear the required particulars and signatures of the proposers, and the date for filing nomination forms had passed. The court also noted that the election process had begun, and the list of candidates had been published, with the elections scheduled for the same day.
Issues: The main issue was whether the court could entertain the petition seeking mandamus to file nomination for Rajya Sabha Election 2022, considering the bar to interference by courts in electoral matters under Article 329 of the Constitution of India and Section 80 of the Representation of the People Act, 1950.
Ratio Decidendi: The court held that any challenge to the election to either House of Parliament can only be made by way of an election petition before the Election Commission of India, as per Article 329 of the Constitution of India. The court also noted that Section 80 of the Representation of the People Act, 1950 prohibits challenging any election except by way of an election petition.
Final Decision: The court dismissed the petition, stating that the petitioner had an efficacious remedy available under law and could not have invoked writ jurisdiction, considering the bar by the Constitution of India, Representation of the People Act, 1950, and the settled position of law.
ORDER
CM APPL. 28293/2022
1.0 Allowed, subject to just exceptions. Application is disposed of accordingly.
W.P.(CRL)-9475/2022
2.0 Vide this petition under Article 226 of the Constitution of India, the petitioner has prayed as under :
I. issue a writ of mandamus or any other appropriate writ/order/direction commanding the respondents to decide the candidature of the petitioner to file his Nomination for Rajya Sabha Election 2022 at earliest;
II. issue a writ of mandamus or any other appropriate writ/order/ direction commanding the respondents to grant permission to the petitioner to file his Nomination for the candidature of Rajya Sabha Election 2022;
III. issue a writ of mandamus or any other appropriate writ or direction, thereby directing the respondents to withdraw the column of proposer in the Nomination Form (annexure P-3 herein) and quash the same;
IV. pass an order awarding the cost in favour of the petitioner and against the respondents; and
V. pass such other orders, which this Honble Court may deem fit and proper under the circumstances of the case.
3.0 It is submitted that the respondent no. 1 issued Notification bearing no. ECI/PN/45/2022 dated 12.05.2022 for Biennial Elections to the Council of States to fill the seats of members retiring between 21.06.2022 to 01.08.2022. The last date for submission of nomination was 31.05.2022.
3.1 It is further submitted that the petitioner is a citizen of India and intended to file his nomination as independent candidate for Rajya Sabha Election, 2022. Accordingly, he collected the nomination form on 30.05.2022. But the petitioner was not allowed to file his nomination and was required to get the signatures of the proposer, as mentioned in a column in the said Nomination Form. In absence of the proposer, the petitioner was prevented from filing his nomination for candidature for MP Rajya Sabha Election July 2022 on time. Hence, this petition.
3.2 It is submitted that the petitioner approached the respondent to allow him to file his candidature without proposer, but the officials did not pay any heed to his request in view of its own, rules, regulations and policies.
3.3 The petitioner has also submitted that his fundamental right of free speech and expression and the right to personal liberty has been infringed by the respondent by mala fide not granting him permission to file nomination for Rajya Sabha Election 2022.
4.0 On the other hand, Ld. Counsel for respondent no. 1 seeks dismissal of this petition at the outset. He submitted that the present petition is not maintainable as it is barred by Article 329(b) of the Constitution of India and Section 80 of the Representation of the People Act, 1950. Ld. counsel also submitted that once the election process has begun, no court can entertain any such litigation. If at all, the petitioner could approach Election Commission of India, that too only after the elections are over. In support, he placed reliance upon the judgment of Hon'ble Supreme Court in Mohinder Singh Gill & Another V. Chief Election Commissioner, New Delhi & Others (1978) 1 Supreme Court Cases 405.
5.0 Admittedly, as required, the Nomination Form of the petitioner did not bear the particulars and signatures of the proposers. The date for filing of Nomination Forms for the Rajya Sabha Elections 2022, is already over. It is also not in dispute that the list of candidates for the aforesaid elections has already been published and the said elections are scheduled for 10.06.2022 i.e. today.
6.0 It would be pertinent to refer here to Article 329 of Constitution of India, which reads as under :
329. Bar to interference by courts in electoral matters.-
[Notwithstanding anything in this Constitution]
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the Hous
The central legal point established in the judgment is the bar to interference by courts in electoral matters under Article 329 of the Constitution of India and Section 80 of the Representation of th....
The right to contest an election is not a fundamental right or a common law right, but a statutory right conferred by a statute and subject to certain constitutional restrictions.
Elections must remain uninterrupted by pre-election challenges, as such grievances can only be adjudicated post-election through an election petition per Article 329(b).
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